Ninth Circuit

The Ninth Circuit vacated a defendant’s conviction because the trial court decided venue as a legal question and did not give a venue instruction to a jury.

The Ninth Circuit reversed the district court’s denial of the defendant’s motion to suppress statements. The Court held that the defendant’s second interview with the FBI was not sufficiently attenuated from his first interview eight months prior, where he was unlawfully detained and interrogated, based on the FBI telling him they were there to ask “follow up” questions and never read him his Miranda rights. The Court further noted that the fact that eight months passed and the agents did not act deceitful was not dispositive.

The Ninth Circuit reversed convictions for fraud because the government disclosed material impeachment evidence about one of its witnesses after the close of evidence and after it had given its closing argument. The defendants were prejudiced by this untimely disclosure, especially given the length of jury deliberations and split verdict.

The Ninth Circuit reversed one of the defendant’s assault convictions and corresponding § 924(c) convictions as multiplicitous because the defendant, although charged with shooting at five officers, only shot at them four times. The Court also held that multiple shots fired in quick succession do not necessarily mean the firearm was only used once under 924(c).

The Court held that the defendant could not be removed and later charged with illegal reentry based on a conviction under California law that was broader in defining methamphetamine than the federal law defining methamphetamine.

The Court found that there was sufficient evidence to convict the defendant for bribery based on evidence that he took money from an undercover agent to perform an official act, even though the defendant lacked the actual ability to exert the promised influence necessary to perform the official act. The Court explained that the Government does not have to prove that a bribery defendant actually has the ability to achieve the promised outcome since the crime of bribery is based on the agreement, not the outcome.

The Court affirmed the defendant’s conviction for possession of meth with intent to distribute, holding that the defendant was not entitled to a jury instruction on the lesser included offense of simple possession where the evidence showed that the quantity of meth exceeded the quantity associated with personal use, the meth’s purity suggested that the meth was being used as a cutting agent, and the defendant’s travel indicated possible distribution.

The Court held that the sentencing court committed plain error by applying the general-fraud Guidelines under U.S.S.G. § 2B1.1 because the defendant’s mail fraud conviction also established a visa fraud offense specifically covered under U.S.S.G. § 2L2.1, the Guideline for visa fraud.

The Court reversed the defendant’s conviction for aggravated identity theft, holding that the defendant did not “use” his patient’s identifying information when he fraudulent billed Medicare for services he never provided them, since he did not use their identifying information for the purposes of passing himself off as another person.

The Court affirmed the district court’s order sentencing the defendant to consecutive terms of imprisonment for violating his supervised release. Even though the district court had initially imposed concurrent terms of imprisonment and supervised release, the Guidelines allow a sentencing court to impose consecutive or concurrent sentences following the revocation of supervised release.